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Maverick
Maverick, Lawyer
Category: Real Estate Law
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Experience:  Over 13 years experience in civil law.
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Youre right-- I was granted a new trial on my original claim

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You're right-- I was granted a new trial on my original claim for back rent, but not on the counterclaim. The reason I was given a retrial on my original action for money judgment was the judge's finding that I was not served the tenant's answer and denial, that I did not receive notice of the date of the mediation for the money action, and that, in my appeal, I was able to present a valid defense to the tenant's claim that the house was uninhabitable (the house was rented the day she left). The reason the judge affirmed the counterclaim was that the records show I was mailed notice of the May 23 determination hearing for the tenant's counterclaim after the May 6 mediation hearing, which I did not attend. However, one interesting thing the district judge found: the lower judge erred in dismissing the 2 motions you instructed me to do for being past the 10 day deadline-- I should have been given SIXTY days to file those motions, which ends this coming Monday. Question: What motion can I file at this point, that would lead to vacating the default judgment and recovering the funds that were mailed by the clerk of court to the tenant today? I looked at the case file today, and found things that took my breath away. In my absence at the counterclaim determination hearing on May 23, when she was awarded the default judgment, the tenant submitted photographs to the judge showing the house at its worst-- shots of peeling paint on the windows, 2 holes on the exterior walls, an uninsulated wall in the garage-- all of which were repairs she volunteered to fix in exchange for three half month subtractions from rent, all of which she got! That's the reason she had these photos-- to document to me the things she was doing to justify the rent subtractions. Of course the judge didn't know that. She never presented the "after" photos, only the "before", giving the impression to anyone reading her presentation that those were the permanent conditions she was living in. I went to the health and building inspections department today to pick up the three year rental permit for the house, whch was dated the day before she moved in-- the house had just passed inspection for the next three years when she moved in, and I have certification from the clerk that no complaints were filed on the house in 2011, during the period of her stay. But back to my non-attendance at the May 23 hearing-- given I had no knowledge of the counterclaim, I did not open the letter from the court sent after the money judgment hearing, thinking it was the "usual". The "usual" was (after not attending money judgment hearings in the past), a default judgment in my favor, when 95% of the time the defendant tenant also didn't appear. I can cite many cases (case numbers) when this happened. Given the pre-existing condition that I didn't know of the counterclaim, I thought the letter that came after the money judgment hearing was the usual default judgment in my favor, not any notice about a counterclaim hearing. Can I use this argument, along with the tons of evidence I have on the bogus claim of uninhabitability, to still do anything about fighting the judgment (eventually vacating or reversing it), by Monday? Can I still operate within the 60 day period to file a motion specific to the counterclaim? Thank you!
Submitted: 3 years ago.
Category: Real Estate Law
Expert:  Maverick replied 3 years ago.

Welcome to Just Answer! My name isXXXXX very much enjoy what I do and I hope that you will benefit from this information.

 

However, one interesting thing the district judge found: the lower judge erred in dismissing the 2 motions you instructed me to do for being past the 10 day deadline-- I should have been given SIXTY days to file those motions, which ends this coming Monday

 

 

You will need to remind me what the above is about. I cannot recall what two motions you are talking about.

Customer: replied 3 years ago.

 

You inquired about one of these motions yesterday-- the motion for stay of enforcement of judgment. The other one that went with it was the motion for a new trial.

 

I hope you are able to be following from your end the thread of this question.

 

In my answer to your inquiry about this yesterday I said both motions were dismissed because they were filed past the 10 day deadline-- when you and I met for the first time on this case on the first week of June, I think, the day you instructed me to find the law manual to learn to draft these motions-- that very day was already 15 days out of the judgment day of May 23, and you thought I should file it that day to meet the 15 day deadline. I did. The judge then denied both claims because he said the deadline was 10 days. So I filed an appeal, whose deadline was 20 days (I got it in in the nick of time)-- it was submitted on June 10, using all the material I prepared hurriedly for the denied motions. Then the decision on the appeal came down from the district judge, who mentioned in his findings that the first judge should have applied the 60 day deadline for my motions, not the 10 day.

 

If that's the case, the 60 day deadline is this coming Monday. Can I file a motion of some sort to keep the fight against the judgment (already disbursed) alive? It is important for my credit report that I vacate this judgment-- I've never had one. I don't have a single collection or foreclosure or such on my credit file.

Expert:  Maverick replied 3 years ago.
Okay, this helps refresh my memory. If we found the deadline was 15 days and the small claims court thought it was 10 days the why did the district court judge say it is 60 days? Am I missing something?
Expert:  Maverick replied 3 years ago.
I think I see the problem, you must not have filed a motion for new trial on the counterclaim.......
Customer: replied 3 years ago.

It is the first judge who missed something. He simply applied the wrong deadline to the case! So did the clerk of court, who said the deadline for filing the appeal was 20 days, which I followed, because it was the nearest date at hand. When I was reading the rules of procedure I discovered myself swimming in various deadline dates I couldn't tell which applied, so I took the clerk of court's input. That turned out to be correct, at least, because my appeal wasn't shot down for the wrong deadline, like the first motions. Now, with the statement from the district judge that the correct deadline was 60 days, can we take advantage of it somehow, given that the 60th day is this Saturday, so I can file somethin Monday.

Customer: replied 3 years ago.

 

Yes, I think I filed for a motion for a new trial on the counterclaim, specifically asking that the default judgment on that counterclaim be set aside because I was not noticed about the existence of a counterclaim. The magistrate judge who decided on that motion, and also on the motion for stay of enforcement of judgment, denied both on the basis of the 10 day deadline. He is the same judge who tries eviction cases, and who entered the default judgment on the counterclaim. If his memory is good, he is also the same judge who tried four previous eviction cases against this same tenant, and who entered judgments for her removal from the premises of previous landlords.

Expert:  Maverick replied 3 years ago.

I looked back at our previous threads. If I told you that the deadline to file a motion for new trial in small claims court was 15 days and you filed it with in that time frame, and then the small claims court judge denied it (because he thought the deadline was 10 days) and you filed an appeal to the district court.... the district court judge should have remanded the case back down to the trial court to rehear your motion for new trial and motion to stay enforcement.

 

Instead, it appears that the the district court reaffirmed the counterclaim on its own AND it feels like the trial court erred in denying your motion for stay and new trial. The two things cannot co-exist. The proper procedure for this is an appeal to the court of appeals since it is the district court that has messed up.

 

The only thing that I think you can try to do in the small claims court is to point out the law that says that you have 15 days to submit a motion for stay and new trial as per the law I previously cited you about a month or so ago. In other words, you would represent the motion for new trial and stay motion based on the district court's ruling that the trial court should have given you 15 days not 10. The think that I cannot understand is where this 60 days is coming from???

Customer: replied 3 years ago.

The 60 days is 1.977 (Rules of Civil Procedure), setting aside default judgment. "Under IRCP 1.977, a default may be set aside, upon motion filed within 60 days of judgment for good cause; defined as mistake, inadvertence, surprise, excusable neglect or unavoidable casualty."

 

"The magistrate should have used the 60 day time frame of IRCP 1.977 and not the 10 day time limit of IRCP 1.1004 in deciding the timeliness of Plaintiff's motion."

 

Expert:  Maverick replied 3 years ago.

Rule 1.977 Setting aside default. On motion and for good cause shown, and upon such terms as the court prescribes, but not ex parte, the court may set aside a default or the judgment thereon, for mistake, inadvertence, surprise, excusable neglect or unavoidable casualty. Such motion must be filed promptly after the discovery of the grounds thereof, but not more than 60 days after entry of the judgment. Its filing shall not affect the finality of the judgment or impair its operation.

 

 

Rule 1.1006 Stay. If motions under rule 1.1003 or 1.1004 or a petition under rule 1.1012 are timely filed, the court may, in its discretion and on such terms, if any, as it deems proper order a stay of any or all further proceedings, executions or process to enforce the judgment, pending disposition of such motion or petition.

[Report 1943; November 9, 2001, effective February 15, 2002]

Rule 1.1007 Time for motions and exceptions. Motions under rules 1.1003 and 1.1004 and bills of exception under rule 1.1001 must be filed within fifteen days after filing of the verdict, report or decision with the clerk or discharge of a jury which failed to return a verdict, unless the court, for good cause shown and not ex parte, grants an additional time not to exceed 30 days. Resistances and replies may be filed and supporting briefs may be served as provided in rules 1.431(4) and 1.431(5).

[Report 1943; October 31, 1997, effective January 24, 1998; November 9, 2001, effective February 15, 2002; August 4, 2010, effective October 4, 2010]

 

 

 

The reason we did not use 1.977 is because if you read the end of it, it says: Its filing shall not affect the finality of the judgment or impair its operation.

 

You need to file a stay under 1.1006 so we went under 1.1004. You had 15 days, not 10 days to file the motion for new trial and the stay. We did that right. If the lower court judge or the appeals judge did not follow this law, they got it wrong.

 

I would represent this law and the motion for new trial and the motion for stay to the small claims court judge and SHOW him the law this time.

Customer: replied 3 years ago.

For Rule 1.1007 that you cited above, the time for filing has been changed from fifteen days to ten days in the latest version of the rules for civil procedure. The copy I got online, I believe from the public website of the Iowa legislature is dated December 2010.

 

The link to it is http://www.legis.state.ia.us/Rules2.html

Expert:  Maverick replied 3 years ago.

Rule 1.1007 Time for motions and exceptions. Motions under rules 1.1003 and 1.1004 and bills of exception under rule 1.1001 must be filed within fifteen days after filing of the verdict, report or decision with the clerk or discharge of a jury which failed to return a verdict, unless the court, for good cause shown and not ex parte, grants an additional time not to exceed 30 days. Resistances and replies may be filed and supporting briefs may be served as provided in rules 1.431(4) and 1.431(5).

[Report 1943; October 31, 1997, effective January 24, 1998; November 9, 2001, effective February 15, 2002; August 4, 2010, effective October 4, 2010]

Expert:  Maverick replied 3 years ago.

Rule 1.1007 Time for motions and exceptions. Motions under rules 1.1003 and 1.1004 and bills of exception under rule 1.1001 must be filed within fifteen days after filing of the verdict, report or decision with the clerk or discharge of a jury which failed to return a verdict, unless the court, for good cause shown and not ex parte, grants an additional time not to exceed 30 days. Resistances and replies may be filed and supporting briefs may be served as provided in rules 1.431(4) and 1.431(5). [Report 1943; October 31, 1997, effective January 24, 1998; November 9, 2001, effective February 15, 2002; August 4, 2010, effective October 4, 2010]

According to the law above it is still 15 days as of October 4, 2010.

Customer: replied 3 years ago.

The rules of civil procedure changed again after October 4, 2010. Here is the link dated December 10, 2010, with the deadline for Rule 1.1007 changed from 15 days to 10 days.

 

http://www.legis.state.ia.us/DOCS/ACO/CR/LINC/02-02-2011.chapter.1.pdf

Expert:  Maverick replied 3 years ago.

Rule 1.1007 Time for motions and exceptions. Motions under rules 1.1003 and 1.1004 and bills

of exception under rule 1.1001 must be filed within fifteen days after filing of the verdict, report or

decision with the clerk or discharge of a jury which failed to return a verdict, unless the court, for

good cause shown and not ex parte, grants an additional time not to exceed 30 days. Resistances and

replies may be filed and supporting briefs may be served as provided in rules 1.431(4) and 1.431(5).

[Report 1943; October 31, 1997, effective January 24, 1998; November 9, 2001, effective February 15, 2002;

August 4, 2010, effective October 4, 2010]

 

 

The above is from the latest version of the rules FEB 2011.....it still says 15 days...Even the two links that you gave me saY 15 DAYS....

Maverick, Lawyer
Category: Real Estate Law
Satisfied Customers: 3431
Experience: Over 13 years experience in civil law.
Maverick and 7 other Real Estate Law Specialists are ready to help you
Customer: replied 3 years ago.

Please give me the link for the Feb 2011 version!

 

Since our exchange has gotten long, should I click accept? Do you get paid more with more accepts, so long as I don't lose the link with you after clicking accept?

 

PLEASE GIVE ME THE LINK FOR THE FEB 2011 VERSION! I am totally confused.

 

I did check the Dec 2010 version and it says:

 

 

Rule 1.1007 Time for motions and exceptions. Motions

under rules 1.1003 and 1.1004 and bills of exception

under rule 1.1001 must be filed within ten days after

filing of the verdict, report or decision with the clerk or

discharge of a jury which failed to return a verdict, unless

the court, for good cause shown and not ex parte, grants

an additional time not to exceed 30 days. Resistances and

replies may be filed and supporting briefs may be served

as provided in rules 1.431(4) and 1.431(5). [Report 1943;

October 31, 1997, effective January 24, 1998; November

9, 2001, effective February 15, 2002

Expert:  Maverick replied 3 years ago.

Yes, thank you for the accept, if you do not click accept I do not get paid....

 

http://www.legis.state.ia.us/aspx/CourtRules/pubDateListing.aspx

 

look at this link above and at the top you will see years from 2002 to 2011...you can click on the 2011 and it will bring those up. Also the one that says 10 days the last effective date is shown to be Feb 15, 2002....this is way old.

 

The ones I gave you ... the last effective date is Oct 2010.....this is the 15 day rule and the one that is current law from what I can see.

Customer: replied 3 years ago.

Okay, looks like I can still connect with you after clicking "Accept". This is mind boggling to me-- how can a simple deadline not be agreed on by attorneys and judges alike?

 

If the deadline is 15 days, you are saying I have to represent the motions for new trial and stay again to the small claims judge. But they are obviously using some other reference for 1.1007, because they all seem to agree about a 10 day deadline-- the two judges, and even the local atty. we consulted yesterday.

 

You are right-- the deadline in your link above says 15 days, and it's for the year 2011, although the actual document that comes up after you click the link for Chapter 1 is dated December 2010.

 

Oh dear. So now, I will tell the same judge who will preside on my trial August 15 that he was wrong on the 10 day deadline, by itself, and the district judge was also wrong referring to the 10 day deadline in his decision, and in fact the district judge was also wrong even referring to the 60 day deadline (because filing under that rule does not affect the finality of the judgment).

 

Okay, should I be delicate in my language-- how exactly do I say it. Give them the internent link? But I have an idea...

 

Question: Since the appeal has been decided, affirming the counterclaim (while using all erroneous deadline info), and the money has been disbursed, do I have a deadline for questioning the magistrate judge's dismissal of the first two motions? the reason I ask is, if I wait to win on August 15 ( I will be able to show to the same judge that there was no basis for the counterclaim), can I then file my motion on his mistake after August 15, and use that as the basis for his retroactively vacating the judgment? By that time he will be more amenable to do it because he will know all the facts from the August 15 trial.

 

 

 

 

 

 

Expert:  Maverick replied 3 years ago.

The district court judge is not wrong about the 60 day deadline but that route of vacating the default would not allow you to stay the effect of the judgment like 1.1004 and 1.1006 do.

 

I would print out the statutes and show them specifically the language of 15 days.

 

I do not know who the magistrate is but if he was on the district court, to question the district court's dismissal of the two motions you have to file an appeal with the court of appeals. The deadline for that is usually 20 days time to file notice of appeal but you will need to check he rules of appellate procedure.

 

 

If he was the judge in the small claims court, then you have file an appeal to the district court just as you did which is 20 day and you already used up this appeal.

 

At this point, you could ask for a rehearing in the district court and/ or the small claims court on the issue of why they denied your motion for new trial and stay on 10 days grounds when the rule says 15 days. It may be best to write a letter to the judges and copy the other side and include the law and the rules that you filed under and show how they applied the wrong rule.

 

 

 

The rest of what you are asking I do not understand.

 

 

Expert:  Maverick replied 3 years ago.

The legally sound way to address this (instead of filing an appeal to the court of appeals) is to file a motion for rehearing/new trial on the issue of why the small claims court and the district court denied the motion for new trial /stay filed in the small claims court based on an erroneous 10 day deadline.

 

 

Does this make sense?

 

Customer: replied 3 years ago.

 

To clarify my question. As of now, I have been granted by the district judge who ruled on my appeal, a new trial on my original action for money judgment (collecting back rent) that I did not attend. On that original lawsuit, I am going to have a new trial on August 15, presided over by the same magistrate judge who entered the default judgment on the counterclaim. At that trial, I will be able to present indisputable evidence about the condition of the house, that it was not uninhabitable, etc. All of that will speak to the judge and he will realize that the counterclaim (which was based on the tenant asserting that the house was uninhabitable) had no basis. I expect that I will be awarded back rent owed on August 15. That will only happen if I prove that the house was not uninhabitable. When I prove that, the judge who granted the default judgment based on the tenant's claim of uninhabitability will know the truth. That's when I will bring up his mistake on dismissing my previous motions fighting the counterclaim (motion for stay and motion for new trial). He will now be more willing to vacate the judgment, since that's my ultimate aim.

 

In other words I will file for rehearing/new trial on the issue of the motions denial based on the erroneous 10 day deadline, after the facts on the whole matter have been aired and exposed on August 15.

Expert:  Maverick replied 3 years ago.

At this point that is all you can do since the funds have been disbursed. But without a motion pending before him on that date on the issue of the counterclaim, he cannot do anything.

 

What should have happened: the small claims judge denies MFNT and Stay on 10 day deadline erroneously, then this issue is appealed to the district court, then the district court should have reversed b/c deadline was 15 days not 10, then small claims court fixes issue.

 

If the above is not what happened then the way to fix this is to ask for a rehearing in the district court on the 10 /15 issue so the district court can revisit its 60 day mistake and send it back to small claims court for rehearing based on 15 day rule. If this happens then the small claims judge will have the ability to reverse the judgment on the counterclaim.

 

 

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Customer: replied 3 years ago.

 

Am I still within the time frame for asking for this rehearing? The judge denied my motions on June 8.

 

Assuming I can still ask for this rehearing, the timing is my question. Should I ask for it before the August 15 retrial, or after? Those motions were to fight the counterclaim. By a different route (via the retrial on my dismissed claim for back rent) the counterclaim will be proven false by August 15.

 

If I ask for the rehearing on the dismissed motions before the August 15 trial, it will be pending in front of the judge during the trial. I think that's a good position to be, just as much as doing it after, when all the proof is in.

 

Am I still within the time frame for asking for the rehearing, and more important, how is it done-- just by a letter to the small claims judge, or filing a motion with district court?

 

Customer: replied 3 years ago.

On whether I still have time to file for the rehearing. I read 1.1007 again. It says 15 days to file a motion after a verdict, unless the judge extends it another 30 days.

 

So, his verdict denying my motions came in on June 8. Fifteen days after June 8 have elapsed, on June 23. Thirty days after June 23 is July 23, this Saturday. Which means I should file something, a letter or a motion, by Monday.

 

Of course, I don't really have the extra thirty days, because the judge hasn't really given me an extension. But he's in the wrong, and I (via you) am in the right on the issue.

 

Advise? A letter to the judge, or a motion to the district court, by Monday?

Expert:  Maverick replied 3 years ago.

You had 15 days from the date the district court judge denied your 2 motions to file for a rehearing/motion for new trial in the district court instead of going to court of appeals. I don't' know if that started on June 8 or some other date. When conversing about this yo need to refer the the small claims judge as SCJ and District J as DJ so I know which judge did what when.

 

 

 

 

Maverick, Lawyer
Category: Real Estate Law
Satisfied Customers: 3431
Experience: Over 13 years experience in civil law.
Maverick and 7 other Real Estate Law Specialists are ready to help you
Customer: replied 3 years ago.

Well, the verdict denying the motions was filed by SCJ June 8. So the 15 days were up June 23, unless the judge [SCJ] for good cause and not ex-parte allowed an extension of another 30 days, which would be this Saturday.

 

How about using the 60 day time frame (Rule 1.977) to file a motion against the original May 23 default judgment itself, or even the DJ's decision on June 28 affirming the judgment? Both the SCJ and the DJ were in error letting the 10 day deadline stand. Actually, I don't understand Rule 1.977 at all. What is it for exactly, if its filing does not affect the finality or operation of the default judgment?

 

For the May 23 default judgment by the SCJ, the 60 day expires when, exactly, tomorrow July 22, or July 23 Saturday (Monday)?

 

For the June 28 decision by the DJ (affirming the counterclaim, and therefore indirectly supporting the error of the SCJ on the motions denial), the 60 day expires August 27.

 

But it all depends on what the 60 day is for, its purpose.

 

What to do?

 

P.S. Should I write the SCJ a letter pointing out his error on the 10/15 day deadline? Even if the letter is late (based on the 15 day limit from his June 8 verdict), it isn't late, based on the 30 day extension, which he can grant retroactively. The 30 day extension is this Saturday. Is there such a thing as a retroactive granting of an extension?

 

 

Expert:  Maverick replied 3 years ago.

First paragraph - no use

 

2nd paragraph-- yes in the SCJ's court you can file a motion to vacate the default judgment till Saturday, but it won't stop the funds from being disbursed. If you win the court will have to order the other side to return the money that they already collected.

 

2nd paragraph stuff has nothing to do with DJ.

 

I would shoot for 7/22 to be safe.

 

6/28 and 8/27 dates of no use

 

no retro active 30 day ext.

 

Shoot for filing a motion to vacate default in SCJ's court by 7/22 - best option.

 

Maverick, Lawyer
Category: Real Estate Law
Satisfied Customers: 3431
Experience: Over 13 years experience in civil law.
Maverick and 7 other Real Estate Law Specialists are ready to help you

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